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Federal Civ Pro > Discovery > Flashcards

Discovery Flashcards

1
Q

What is Discovery

A

Phase of litigation in which the parties find out what the other parties and witnesses know

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2
Q

Initial Required Disclosures Basic Idea

A

Information that each party must give to other parties even though parties haven’t asked for it.

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3
Q

When are Initial Required Disclosures Due

A

within 14 days of Rule 26(f) conference, unless court order or party stipulation.

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4
Q

What is initial disclosures are required?

A

1) Identities of persons with discoverable information that the party may use to support her claim or defenses

2) DOcuments and things that the party may use to support her claims or defenses (Must be in party’s custody and control)

3) Computation of relief and along with supporting documents/ESI

4) Insurance coverage (that covers all or part of judgment)

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5
Q

Penalty for Failing to disclose initial required disclosures

A

Party cannot use the undisclosed material in the case unless the failure to disclose was substantially justified or harmless

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6
Q

Required disclosures about an expert witness

A

After initial required disclosures, at a time directed by the court, each party must identify expert witnesses who may provide testimony at trial and certain other disclosures

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7
Q

Consulting Experts vs Expert witnesses

A

Consulting experts help a party prepare a case. They are NOT expert witnesses and not discoverable absent exceptional circumstances.

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8
Q

Contents of required EW disclosures

A

Identity of and written report prepared by the EW. Includes:
1) Opinions that EW will express
2) Bases for opinions
3) Facts used to form opinions
4) EWs qualifications AND
5) How much the EW is being paid

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9
Q

Deposition of EW

A

After EW Disclosures, party may take a deposition of the EW. Best practice is to subpoena.

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10
Q

Failure to get required EW disclosures

A

Party cannot use the EW in the case unless the failure was justified or harmless

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11
Q

Required PRETRIAL Disclosures

A

No later than 30 days before trial, parties must give detailed information about their trial evidence including identity of witnesses, ESI, and other things they intend to introduce at trial

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12
Q

Discovery Tools Process

A

After initial disclosures, parties may request information.

Without court order/stipulaton, party cannot send discovery erqurests to another party until after the 26f conference. (EXCEPTION: requests to produce can be served earlier; once 21 days has passed since service of process)

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13
Q

List of Discovery Tools

A

1) Depositions
2) Interrogatories
3) Request to Produce
4) Medical Exams
5) Request for Admission

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14
Q

Depositions

A

Person gives recorded live testimony under oath in response to questions by counsel/pro se parties. Both parties and nonparties can be deposed.

Parties don’t need to do research beforehand.

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15
Q

Deposition Notice

A

Parties: No subpoena required. Just a notice of deposition.

Nonparties: Must be served with subpoena or else not compelled to attend.

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16
Q

Subpoena Duces Tecum

A

Requires deponent to bring requested materials to deposition

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17
Q

Limit on Deposition of Nonparties

A

Unless nonparty agrees otherwise, max 100 miles from residence or place of employment.

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18
Q

Deposition of an organization

A

Party “notices” a deposition of the organization and describes the facts she wants to discover.

Organization designates a person to testify.

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19
Q

Limits on Depositions

A

Max 10 depositions

Can’t double depose someone without court approval or stipulation.

Can’t exceed one day of seven hours unless court orders or parties stipulate otherwise.

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20
Q

Use of depositions

A

May be used at trial to:
1) Impeach the deponent
2) For any purpose if the deponent is an adverse party; or
3) for any purpose if the deponent is unavailable for trial, unless that absence was procured by the party seeking to introduce the evidence

21
Q

Interrogatories and rules

A

Written questions to be answered in writing under oath.

Sent only to parties.

Generally max 25.

Must be answered within 30 days from service.

Answering parties must do homework. Answer based on information reasonably available.

22
Q

Interrogatories and business records

A

If answers are in business records and the burden of finding the answer would be about the same for either party, the responding party can allow the requesting party to have access to the records.

23
Q

Contention Interrogatories

A

Interrogatories that inquire about legal contentions.

Permitted.

24
Q

Request to Produce and rules

A

Asks a party to make available for review and copying “documents or things;” or to permit entry on designated property to inspect, measure, etc.

ESI (Electronically stored info) must be produced in the form requested, unless objected to.

Disclosing party must respond within 30 days of service, stating it will be produced and/or objections.

Only applies to parties, but a nonparty can be subpoenaed to the same effect.

25
Q

Medical Exams (Physical or Mental)

A

Court order required to compel.

Requesting Party must show:
1) that the person’s health is in actual controversy, and
2) Goods cause.

Requesting party chooses the licenses medical professional to perform the exam

26
Q

Medical Exams, custody, and control

A

Narrow.
Employee not in custody/control of employer, but a child is.

27
Q

Requesting a copy of the medical exam report

A

Person undergoing the exam can get a copy of the report.

If requested and obtained, she must, on request, produce all medical reports by her own doctors about the same medical condition, and waives any doctor-patient privlege with her doctor regarding the condition.

28
Q

Request for Admission

A

A written request that someone admit certain matters.

Must respond within 30 days of service.

If responder made a reasonable inquiry and can’t find enough information to admit or deny, she can say she doesn’t know.

IF aprty fails to deny, the matter is deemed admitted.

Usually used to authenticate documents.

29
Q

Signature Requirement for Discovery

A

Parties sign substantive answers to discovery under oath. Every request and response is signed by counsel certifying it is:
1) Warranted;
2) Not interposed for an imporper purpose; and
3) Not unduly burdensome

30
Q

Duty To Supplement

A

If new facts come to light after responding to discovery that makes a required disclosure, interrogatory, RfP, or RfA incomplete or incorrect, party must supplement.

31
Q

Standard Scope of Discovery

A

Can discover anything that is relevent to a claim or defense and proportional to the needs of the case.

Information need not be admissible to be discoverable.

32
Q

Privilege Objection

A

A party can object to discovery on the basis of evidentiary privlege (such as confidential communications).

33
Q

Work Product Protection and types

A

WP = material prepared in anticipation of litigation. Protected. Doesn’t need to be generated by a lawyer in federal court.

Two types:
1) Qualified
2) Absolute

34
Q

Qualified Work Product

A

Work product that can be discovered if requesting party can show
1) Substantial need and
2) undue hardship in obtaining the materials in an alternative way

35
Q

Absolute work product

A

Absoutly protected and cannot be discovered.

36
Q

Opinion work product

A

Absolutley protected.

Consists of mental impressions, conclusions, opinions, or legal theories.

37
Q

Party’s Own Statements

A

Notwithstanding work product, a party can demand discovery of any pervious statement she made regarding the case.

38
Q

Asserting privlege or work product

A

In a “privlege log,” must claim the protection expressly and describe the materials in detail. Must be detailed enough to let judge make a decision.

39
Q

Inadvertent disclosure of privlege or protected material

A

Producing party should notify the other party promptly.
The recieving party must then return, sequester, or destroy the material pending a decision by the court about whether there has been a waiver.

40
Q

Three Ways/scenarios courts get involved in discovery disputes

A

1) Party Seeks Protective Order
2) Party responds, but not fully
3) No response to discovery request

41
Q

Party Seeks protective order

A

If responding party thinks request subjects her to annoyance, embarassment, undue burden or expense, she can move for a protective order.

Party must certify that she tried in good faith to resolve the issue without court involvment (asked otherside to meet and confer.)

If the court agrees, court can:
1) Deny discovery
2) Limit discovery, or
3) permit discovery or specified items

42
Q

Party Responds but not fully

A

Responding party may be compelled to comply by court order

43
Q

No response to discovery request

A

Will be subject to sanctions plus costs

44
Q

Pre-seeking sanctions

A

Must certify they tried to meet and confer (good faith attempt without court involvment)

45
Q

Sanctions for partial responses process

A

1) Requesting party moves for an order compelling production + costs of bringing the motion

2) If producing party violates order, court can enter a “merits” sanction + costs and attorneys fees for bringing motion. Producing party could be held in contempt (exception: medical exam submission).

46
Q

Sanctions for no response process

A

Court can enter merits sanction + costs.

47
Q

What are merits sanctions

A

Judge can choose among the following “merits” sanctions:
1) Establishment order (establishes facts as true)
2) Strike pleadings of the disobedient party (issues re: discovery)
3) Disallow evidence from the disobidient party (issues re: discovery)
4) Dismiss P’s case (if bad faith shown)
5) Enter default judgment against D (if bad faith shown)

48
Q

Litigation hold and ESI special rules

A

WHen litigation is reasonably anticipated, parties must preserve discoverable info.

If ESI is truly lost b/c party in control failed to take reasoanble measures to preserve it, court may order measures to cure the harm.

If lost in bad faith, court can enter adverse inference and/or merits sanctions and/or deafult judgment.

Federal Civ Pro (13 decks)

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